Panchal Construction Ltd and Ors v Zulu (Appeal 10 of 1991) [1991] ZMSC 36 (11 June 1991)

IN ’THE SUPREME COURT OF ZAMBIA Appeal no. 10 of 1991 HOLDEN AT LUSAKA (civil jurisdiction) ' ' ' ' PANCHAL CONSTRUCTION LIMITED 1st Appellant MWANAMUTO INVESTMENTS LIMITED 2nd Appellant HASMUKH GOPAL PANCHAL 3rd Appellant -v- ENIAS BRUSHOW ZULU Respondent CORAM: Ngulube, D. C. J., Sa^ala and Lawrence, JJ. S. "On 11th June, 1991 ■ - \.r For the appellant: L. P. Mwanawasa, of Hwanawasa and Company For the respondent: D. A. Kafunda, of Messrs Kafunda and Company JUDGMENT Ngulube, D. C. J. delivered the judgment of the court Case referred to: 1) Kambarage Kaunda -v- The People SCZ Judgment no. 6 of This is an appeal and a cross appeal arising out of an action which is still pending in the High Court between the parties in this matter wherein the respondent is the plaintiff and the appellants are the defendants. The brief facts to the extent that it is necessary to refer to them were that, in the middle of the trial or towards the close of the plaintiff's case, the plaintiff applied and was allowed to amend the statement of claim to introduce a number of new allegations and new causes of action. An application was then made to allow the plaintiff to re-open his case for the purpose o'f leading evidence in support of the amendments. Counsel for the defendants objected and thereupon a ruling was made against the plaintiff leading any new evidence. The defendants applied to continue with the trial in the absence of such further evidence from the plaintiff but this was 2/............ rejected - z - rejected; in consequence both parties appealed to this court. The defendants wished to continue the trial without the fresh evidence of the plaintiff while the plaintiff appealed in order to be allowed to give such further evidence. We are pleased to hear this morning that, by consent, the parties have agreed that this matter should in fact go back so that the trial can continue and be concluded. For the record we wish to state very briefly that in terms of the rules of court and the general practice of the courts which favour the resolution of disputes more on the merits than on technicalities, it would have been much better had there been opposition to the amendment applied for by the plaintiff for such amendments to have^been turned down as coming at too late a stage in the proceedings. However, once leave to amend had been granted it followed and. indeed in our view it would be only logical that the plaintiff had to be permitted to support the amendment which had been allowed subject, of course, to the other side being compensated in costs necessitated by such amendments and also, of course subject to their also being' allowed to amend, their own pleadings and any necessary adjournment in order to meet the altered case of the plaintiff. In this regard, we recommend to the parties and to the court below, to look at the White Book. 1988 Edition, at para 20/5-8/6 and 20/5-8/11 and 12 where there is a useful discussion of the general principles regarding the grant of leave to amend and also the situation where the amendment is allowed at the trial. We have also been asked to comment on an argument that in terms of a ruling in the criminal inatter of Kambarage Kaunda -v- the People (1) we had indicated that interlocutory appeals would not be allowed in.a criminal matter and that whatever may be said about the points raised or supposed to be raised in an interlocutory appeal the same could not halt a criminal trial which had to be completed and then, as a result of a conviction, any complaints raised in a proper appeal. We have to make it very clear that that ruling related to a criminal matter and a criminal trial. Indeed the rules of the court and the legislation which govern the operations of the court make it very clear that interlocutory appeals are competent and common in a civil matter. 3/.......... //We i - We believe that that disposes of the particular point and confirm the consent order which we understand to mean that the plaintiff's appeal is allowed by consent and that the plaintiff will be allowed to adduce fresh evidence and the defendants' appeal is dismissed to the extent that it sought to continue the trial without such fresh evidence. The whole of the case is remitted to the High Court for the trial to proceed and the costs will abide the outcome of the trial below. M. M. S. W* Ngulube DEPUTY CHIEF JUSTICE E. L. Sakala SUPREME COURT JUDGE A. R^ Lawrence SUPREME COURT JUDGE